OVERVIEW: Prisons have failed to meet almost all objectives of the criminal justice system. Their role as a correctional service has adversely affected the lives of prisoners, their families and the wider community. In NSW, although there was a reported decrease in crime rates, a 7% increase in prison population was noted; highlighting the failure of imprisonment as an effective mechanism of social control.

Additionally, contrary to the NSW Department's goal of reducing adult rates of reoffending by 5% by 2019, the rate of adult re-offending has worsened. The NSW Auditor-General's Report 'Law and Order' (Volume Seven Part One 2015, p. 7) found a 35.9% rate of recidivism within one year of release in 31 December 2013. This rate of re-offending notably increased to 45.8% by 30 June 2014, within two years of release. These rates demonstrate an upward trend in adult re-offending - a clear indication that the prison system is not working.

Clearly, there is a strain on prison infrastructure and services that has resulted in deteriorating prisoner health conditions and rising incidents of self-harm. As the inmate - parole officer ratio is increasing, the attempt to rehabilitate and reintegrate into society has been more difficult. Unfortunately, overcrowding of prisons means a reduced access to adequate support, education and opportunities. The NSW prison system houses an average of three inmates per cell and has over fifty inmates sharing a phone (See:Inspector of Custodial Services Report- Full House 2015).

According to Auditor-General Tony Whitfield, overcrowding has undermined confidence in the justice system and the effectiveness of prisons. His report ‘Performance Frameworks in Custodial Centre Operations' (2016) outlines the ineffectiveness of CSNSWs performance framework, specifying the lack of communication of organisational key performance indicators (KPIs) cascaded to public correctional centres. As a result CSNSW could not assess their performance('Performance Frameworks in Custodial Centre Operations' Media Release, 3 March 2016).In response, a reform project is being introduced that requires public prisons to take accountability like private prisons through meeting and reporting their performance. The project is designed so that rates of recidivism are reduced, community protection is increased, and prison standards are lifted.

Currently, the average Australian prisoner costs $100 000 per year, a figure which is expected to rise. $60 million is also spent on keeping prisoners on remand ("Court backlog costing $60m as jails overflow", SMH, 24 November, 2015). In 2014-15, $3.4 billion was invested into prison systems. Justice Action suggests that these funds could be used more effectively in the establishment of post-release programs, public housing and rehabilitation services for prisoners. The government must seek alternatives to imprisonment that will reduce the strain on economic and social resources, as the high cost of imprisonment cannot be sustained

Detailed inquiries into the NSW prison system and supporting studies say the same thing with almost monotonous regularity; prison does not work in terms of its stated objectives, and the use of imprisonment as a sentence should be scaled down. Despite these findings and the consideration of viable, sustainable alternatives to imprisonment, the government continues to pursue policing, sentencing and prison policies, which have led to inflation of the prison population and overcrowding of jails. History shows that every new jail built will be filled, and overcrowding will quickly reoccur. E.g. The remand centre at Silverwater, the largest prison in NSW, was filled within three months of opening.

Listed below are summaries of the main findings of some important prison inquiries. In addition, here are some relevant issues in prison reform:

There is no technical policy fix to the problems of policing, sentencing and prisoners. Human solutions must be looked for and found.

Sentencing policy must take account of Australia’s human rights commitments, which includes a commitment to the essential aim of the prison as ‘reformation and social rehabilitation’ (ICCPR Article 10(3)). Bail law must also be consistent with Australia’s human rights commitments and this would involve removing the presumptions against bail for several categories of offence (s.8A and s.9 of the Bail Act 1978).

The collective wisdom of all past inquiries and studies must be respected. Prison has failed its stated objectives, so alternative sanctions must be developed and the use of prisons must be scaled back. Prison must not be regarded as synonymous with sentencing.

Prison sentences, in general and in specific cases, must therefore be justified by some real argument of public policy, and not assumed as the default penalty. The question must therefore be, not ‘what is the alternative to prison?’, but ‘why commit to prison?’.

The building of new prisons is entirely regressive and can only expand the total prisoner population, at great financial and social cost. Prison numbers must be capped, and then reduced. There must be a moratorium on the building of any new prison, and a ceiling must be placed on the Corrective Services budget. No real reform requires any greater financial commitment.

A declining prison population is the only acceptable goal. Therefore, prison policy must be integrated with policing and sentencing policy. This in turn requires a commitment to intervene in the law and order culture.

The decision to build a new women’s facility should be subject to more rigorous scrutiny in light of the possible alternatives.

Some form of discountable sentence (e.g. by remissions) must replace the rigid formula of the Sentencing Act 1989. The Act is problematic because no sentencing judge or magistrate has full wisdom or foresight, prison managers value remissions, and incentives for prisoners coincide with the only sensible public policy, which is to minimise the use of prison.

Community corrections, and sanctions such as community service orders that encourage offender responsibility rather than repress it, must be developed and expanded.

Policing practices have an enormous impact on the prison population, and most public policing is aimed at young people. Tolerant policing is required in its own right, but also as a means of finding human solutions and minimising formal legal interventions.

Because the Aboriginal population is overrepresented in prisons, the general reduction of prison numbers is of crucial importance to decrease Aboriginal imprisonment rates, and deaths in custody.

The Nagle Royal Commission into NSW Prisons came after agitation by prisoners and campaigns by many, including the late Labor MP George Petersen. The report by Justice John Nagle proposed and led to these changes:

A new ethos which held that prison was a poor sanction in terms of its stated aims, and was to be a last resort of sentencing.

Exposure and elimination of systematic bashings, especially at Grafton Jail.

The immediate closure of Katingal (which Nagle called an electronic zoo).

A general upgrading of prison conditions, including the introduction of contact visits and phone calls, and recognition of some other minimum conditions.

A recognition that prisoners should be listened to, and have committees as well as access to complaints mechanisms.

A new regime under Commissioner Tony Vinson (1979-81), which would help bring about many of the reforms proposed by Nagle.

The principal policy recommendation of the Nagle report (No. 7) was that ‘loss of liberty is the extent of punishment… a prisoner should be treated justly and humanely ... [and] Imprisonment should be a last resort and those imprisoned should be kept in the lowest appropriate security’.

The Nagle Report in Appendix H has a brief history of the NSW prison system and prison policy from 1788-1967, apart from its own review of events of the 1970.J. F. Nagle (1978) Report of the Royal Commission into New South Wales Prisons, Vol 1, 2 & 3, Government Printer, Sydney, April.

This committee, chaired by Ann Symonds MLC, made 287 recommendations related to women in prison. The report documented the women’s prison population at that time, and affirmed Nagle’s recommendation that prison be used as a sanction of last resort. It noted that 78% of women had a drug or alcohol related addiction, and that 84% had been in prison before. It noted that women in NSW were far more likely than those from most other states (eg. Victoria) to be:

held in prison on remand

held on remand for more than three months

receiving longer prison sentences

imprisoned for drug possession or use

At a time when the NSW women’s prison population was only around 150, the report urged the Government to take immediate action to reduce the imprisonment rate of women in this state (p.40). In the mid 1990s, Corrective Services took up one of the Task Force’s recommendations, by creating the first Transitional Centre for Women (at Parramatta) - a minimum security facility which allowed women to keep their children, and to work in the community, much like a half-way house. The Transitional Centre is one of NSW Corrective Services’ few success stories in recent times.

The principal finding of this Royal Commission was that Aboriginal people died in custody in large numbers because they were in jail in such large numbers (over-represented by a factor of 10-20). There were many recommendations designed to reduce the numbers of Aboriginal people in custody, including:

A series of recommendations (79-91) designed for diversion from police custody, including police practice of arrest being the sanction of last resort (87) and recognising in practice the entitlement to bail (89).

A series of recommendations (92-121) to hold imprisonment as a last resort, including legislation to enforce prison as the last resort.

A series of recommendations (62, 234-245) called Breaking the cycle: Aboriginal Youth, which was aimed at keeping young people out of formal legal processes and institutions (consistent with the Convention on the Rights of the Child 1989).

Note: that when jail numbers as a whole rise, the number of Aboriginal prisoners (being an overrepresented group) rose even more.

An inter-church committee reviewed and reinforced an earlier report by the Churches, called Prison: The Last Resort (1988). It called for a bipartisan approach to prison policy, provided it addresses the main issues. The committee recommended (7) that overcrowding be reduced and other conditions be addressed. It also called for (8) the immediate implementation of measures that reduce the numbers of Aboriginal people in prison as referred to by the Royal Commission into Aboriginal Deaths in Custody.

Inter Church Steering Committee on Prison Reform (1994) Prison - not yet the last resort: a review of the NSW penal system.

Studies in the US have shown that mandatory minimum sentences don’t work. A 1997 study by the Rand Corporation’s Drug Policy Research Centre demonstrated that mandatory minimum sentences were ‘throwing away taxpayers’ money’. Prison was not only an ineffective sanction against the drug trade, it was by far the most expensive. The think tank study showed that, if $1 million MORE in public funds were spent on each drug strategy over 15 years,

mandatory minimums would reduce national cocaine consumption by 13 kilograms

conventional law enforcement would cut it by 27 kilograms, and

treatment of heavy drug users would slash it by more than 100 kilograms

Conventional law enforcement (such as arrests, confiscations, prosecutions and standard prison terms) would eliminate 70% more crimes than mandatory minimums (which impose much higher average sentences).

However, treatment of heavy users would reduce about 10 times more serious crime against people and property than conventional law enforcement and 15 times more than mandatory minimums, even though an average of only 13% of those receiving treatment kick their drug habits. ‘Mandatory sentences are counterproductive ... they are more harmful to the community than helpful’, the study group said.

This cross-party committee found that prison policy should ‘be part of an integrated approach to reducing crime and premised on the principle that imprisonment should only be a measure of last resort’. While the committee was not unanimous on the need for a new jail at Windsor, it did agree that:‘the decision to build a new women’s facility should be subject to more rigorous scrutiny in light of the possible alternatives, the recent drug court results and the likely and actual impact of the Crimes (SENTENCING PROCEDURE) Act 1999. Such scrutiny should include an analysis of the cost, both capital and recurrent, of the new facilities against effective alternative means of dealing with the increased population.’ (7.45)‘This cost-benefit analysis should then be used by the Government to determine whether the building of a new jail should proceed. The committee recommended that the review process should include independent persons such as: the Inspector General for Prisons, representatives of Treasury, groups representing women, and at least one academic with [relevant] research experience’ (7.46).

The committee was unanimous that:

"The Government should be working towards a reduction in the prisoner population and should be taking all reasonable measures to achieve that end. The Committee considers that a reduction is achievable through such measures as the recommendations contained in this report, particularly those relating to the establishment of bail hostels, probation hostels, drug treatment programs in the community and the expansion of transitional centres."

There were hopes that the drug court program, the court liaison program (designed to divert offenders with a mental illness) and the recent changes to sentencing law (requiring reasons for small prison sentences) would help in this process (7.48). To reinforce a commitment to reducing prison numbers, the Committee called for a moratorium on the number of prison beds for women: ‘The Committee considers that there should be a freeze on the number of prison beds for remand and sentenced female inmates, and that any new jail should only replace existing prisoner accommodation.’ (7.50-51).This was designed to prevent the expansion of the prison system.